Separation of Powers

As the head of the Office of Legal Counsel during the Reagan Administration, Mr. Cooper frequently had occasion to issue formal opinions on separation of powers issues. In private practice, the firm has continued to be active in litigating such cases. Representative matters include:

  • Collins v. Mnuchin, No. 17-20364 (5th Cir.).
    We represent shareholders of Fannie Mae and Freddie Mac in a challenge to the U.S. Government’s nationalization of Fannie Mae and Freddie Mac. We argue, among other things, that the Federal Housing Finance Agency’s structure violates the separation of powers in the United States Constitution and that it therefore lacked the constitutional authority to exercise the powers pursuant to which it expropriated the net worth of these companies. We prevailed on that argument before a Fifth Circuit panel but sought rehearing en banc because the panel failed to remedy the violation. The en banc court has reheard the case.
  • Clinton v. City of New York, 524 U.S. 417 (1998).
    We represented New York City and several health care providers and associations in their challenge to the constitutionality of the Line Item Veto Act. The Supreme Court held that the Act violated the Presentment Clause of the Constitution. Mr. Cooper argued the case in the Supreme Court.
  • Raines v. Byrd, 521 U.S. 811 (1997).
    We represented several members of Congress in their challenge to the constitutionality of the Line Item Veto Act. Although the district court held that the Act was unconstitutional, the Supreme Court declined to reach the merits of the members’ claim, holding that they did not have standing to bring this challenge.
  • Federal Election Commission v. NRA Political Victory Fund, 513 U.S. 88 (1994).
    We represented the National Rifle Association Political Victory Fund in an action brought by the FEC alleging violation of campaign contribution regulations. The court of appeals agreed with our position that the composition of the FEC violated the separation of powers. The Supreme Court ultimately dismissed the appeal after argument, agreeing with our argument that the FEC did not have independent litigating authority to challenge the decision of the court of appeals. The case was argued before the Supreme Court by Mr. Cooper.

Prior results do not guarantee a similar outcome.

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